Long Train Running
Sep 23, 2020


It’s Rail Safety Week in North America. This is a campaign to raise awareness for rail safety education and empower all of us to stay safe near highway-rail grade crossings and railroad rights-of-way. Come aboard as we take a closer look at some of the regulatory and administrative actions affecting the railroad industry this week.



The U.S. Department of Transportation’s Federal Railroad Administration (FRA) issued its final rule allowing railroads to use ultrasonic inspection technology, augmented with global positioning system (GPS) technology, to be used in continuous rail testing. These updated regulations are expected to improve safety by making it easier for railroads to test rail more frequently and to identify and repair internal rail flaws before conditions degrade safety. And, proponents suggest that these reforms will allow rail testing vehicles to move without stopping along the track, potentially decreasing passenger and freight train delays associated with routine inspections.



The FRA also announced that U.S. railroads are on track to meet a December deadline to implement an automatic braking system that could prevent catastrophic collisions and derailments caused by speeding. The nationwide rollout of positive train control (PTC) systems comes more than 50 years after the National Transportation Safety Board first made the recommendation for this kind of safeguard.  Approaching the year-end deadline, PTC is operating in 98.8 percent of 57,500 route miles that are subject to the 2008 congressional mandate.



OSHA published specific exemptions and clarifications for railroad roadway work in its Cranes and Derricks in Construction Standard.  The exemptions and clarifications recognize the unique equipment and circumstances in railroad roadway work and reflect the preemption of OSHA requirements by FRA regulations, including those for the safe operation of railroad roadway maintenance machines that have cranes or other hoisting devices. This rulemaking culminates a 10-year period that began when the leading railroad associations filed a petition challenging the Cranes and Derricks in Construction Standard, which was published in August 2010.



Downtown trains, more accurately high-speed rail systems, between Houston and Dallas are one stop closer to their terminals.  The U.S. Department of Transportation’s Federal Railroad Administration released its Record of Decision for Texas Central Railroad, approving regulations intended to keep bullet train passengers, operators, and the environment safe. The FRA rules outline the system’s signal and trainset control, track, rolling stock, operating rules and practice, system qualifications, and maintenance.  On the eastern seaboard, Representatives David Price (D-NC) and G.K. Butterfield (D-NC), along with Senators Richard Burr (R-NC) and Thom Tillis (R-NC), announced  a $47.5 million federal grant to the N.C. Department of Transportation to help establish high-speed passenger rail service between Raleigh and Richmond, Virginia.  The pistons keep on turning.  The wheels go round and round.


Litigation Management



The Arizona Supreme Court unanimously voted to eliminate ethics Rule 5.4, which barred nonlawyers from fee sharing or an economic interest in a law firm. The new rules and code sections are effective January 1, 2021.  The Court also approved a new licensure process that will allow nonlawyers, called “Legal Paraprofessionals” (LPs), to provide limited legal services to the public.  Arizona Supreme Court Chief Justice Robert Brutinel said of the ruling, “The Court’s goal is to improve access to justice and to encourage innovation in the delivery of legal services. The work of the task force adopted by the Court will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help.”



The District of Columbia bar is hosting a similar request for public comment regarding its Rule 5.4, which was issued in January.  In Utah, the department of professional regulation accepted a bid from an on-line legal service entity, who has operated its current model in the United Kingdom where rules of professional regulation permit corporate ownership of law services, to participate in the state’s pilot program. Last month, the Utah Supreme Court approved a “regulatory sandbox,” which will allow nonlawyers to provide certain traditional legal services and authorizes new legal business models and service delivery approaches for a two-year period, after which the state’s Supreme Court will decide on the program’s future.


Making Our Way Around the Country


The Kansas Supreme Court heard oral arguments on whether the Sixth Edition of the American Medical Association guide should be used for evaluating injuries in determining compensation to injured workers. The Kansas Court of Appeals ruled in 2018 that the Legislature went too far with its adoption of the Sixth Edition of the AMA guide.  In the case at bar, the injured worker was considered 6% disabled under the Sixth Edition, contrasted to the Fourth Edition, where he would have been considered 25% disabled.  We’ll keep tracking the results of this case.



Governor Gavin Newsom (D-CA) signed Senate Bill 1159 into law. Under the new law, employers face stricter requirements to report workplace COVID-19 cases to health authorities, and employees sick with coronavirus can file workers’ compensation claims against their employers. The measure now requires the Commission on Health and Safety and Workers’ Compensation to conduct a study of the impacts that claims of COVID-19 have had on the workers’ compensation system, which is due no later than April 30, 2022.



The Oregon Department of Forestry (ODF) indicates that the $50+ million spent to contain the state’s wildfires will now trigger Oregon’s one-of-a-kind wildfire insurance. Oregon is the only state with a private wildfire insurance, Lloyd’s of London program in place since 1973.  The premium is split between the state and private timberland owners. Landowners pay their share through a property tax formula. The current policy is in effect through April 15, 2021.



Lawmakers in New Jersey are considering a bill that would prohibit workers’ compensation insurers from filing subrogation claims against a third party for employee injuries arising from automobile accidents.  The measure, which was referred to the Senate Labor Committee, follows a 2020 New Jersey Supreme Court decision holding that the New Jersey Transit Corp. was not barred by workers' compensation law from filing an action against a third party for injuries sustained by an employee in a work-related automobile accident.  Advocates for the bill state that the supreme court’s decision enables “a cost-shift from the workers’ compensation system to the automobile insurance system,” which was not intended by the Legislature and adversely affect consumer premiums.



Back to our main story this week, your writers at The Way pause to pay our respects to Associate Justice of the United States Supreme Court Ruth Bader Ginsburg.  She was the second woman ever appointed to the High Court, where she served for more than 26 years.  She is now the first women in history to lie in state at the U.S. Capitol.   In January, Justice Ginsburg received the Berggruen Prize for her work as a lifelong trailblazer for human rights and gender equality.  Justice Ginsburg donated the $1 million award to organizations that reflect her personal causes including the Malala Fund, the American Cancer Society, the Metropolitan Opera, the National Museum of Women in the Arts, and Smile Train.  #RIPRBG


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